Does the Constitution limit the ability of a twice-before-elected President to serve as Vice-President? This question, as it turns out, presents an intricate constitutional puzzle, the solution of which requires working through four separate sub-inquiries: Is a two-term President totally ineligible for the Vice-Presidency? Is such a person barred from election to the Vice-Presidency even if that person remains appointable to that office? Is a twice-before-elected President, even if properly placed in the Vice-Presidency, incapable of succeeding from that office to the Presidency? And even if such a succession can occur, must the resulting term of service as President expire after two years? This Article addresses each of these questions by laying bare the implications of the decisive constitutional texts — namely, Article II’s enumeration of Presidential qualifications, the Twelfth Amendment’s treatment of qualifications for the Vice-Presidency, and the post-service limitations placed on two-term Presidents by the Twenty-Second Amendment. To be sure, thoughtful analysts have argued that the Constitution forecloses the possibility that a twice-before-elected President can hold (or at least secure election to) the Vice-Presidential office. Close inspection reveals, however, that that view misses the mark. In fact, the relevant constitutional provisions, their histories, and their purposes all point to the same conclusion: A twice-before-elected President may become Vice-President either through appointment or through election and — like any other Vice-President — may thereafter succeed from that office to the Presidency for the full remainder of the pending term.

On May 17, 1954 the Supreme Court handed down two decisions that for the first time categorically held that racial segregation in public schools was per se unlawful – Brown v. Board of Education and Bolling v. Sharpe. Ostensibly, both cases dealt with a same question; however, in Brown the entity accused of discrimination was a creature of the State of Kansas, while in Bolling the discrimination was practiced by the federal government. The problem that the Supreme Court faced was the language of the Fourteenth Amendment, which, by its own terms, guaranteed “equal protection of the laws” only vis-à-vis states and not the federal government. The Supreme Court recognized as much in Bolling, but ruled segregation illegal in the District of Columbia anyway.

Bolling is now universally recognized as reaching an unquestionably correct result as a policy and moral matter. This recognition makes it all the harder for the adherents of originalism to defend their preferred approach to constitutional interpretation. Originalists are forced to concede that the Constitution, interpreted as originally understood, did not impose equal protection restraints on the federal government, and therefore, Bolling, in imposing these norms where they were not meant to be, was wrongly decided. Recognizing the political (and moral) problem with this approach, originalists have simply attempted to waive the problem away. The problem is that at least in the popular perception “[a] theory of constitutional interpretation that cannot account for Brown [and Bolling] is suspect if not discredited.”

Some scholars, Robert Bork and Randy Barnett amongst them, have argued that although Bolling is indefensible as an originalist matter, this is not a real problem. According to them, even if Bolling were overruled no major problems would arise, if for no other reason than the federal government is politically constrained from running segregated schools or otherwise discriminating on the basis of race. This proposition is both dubious as a factual matter (or at the very least was so when Bolling was decided), and is unsatisfactory as a political matter. The general public is simply unlikely to buy into a judicial theory that would permit the federal government to discriminate at will on the basis of race. Accordingly, if originalism is to be broadly accepted by the public without being undermined by the discussion of Bolling and Brown, one needs to come up with a plausible explanation of how the results (if not the rationale) in those two cases can be supported under an originalist approach to constitutional interpretation.

In this Article I argue that Bolling is justifiable as an originalist matter if one properly interprets the Citizenship Clause of the Fourteenth Amendment. Properly understood, the clause was meant to protect not just a right to a passport or nationality, but a much broader right of equal participation in the civic life of the Nation. The term “citizen” was understood by the framers and ratifiers of the Fourteenth Amendment to encompass a wide scope of political rights, including a right to equality before the law. When viewed from that perspective, it becomes apparent that Bolling was correctly decided not only from the political perspective, but from a legal originalist one as well.

05/29/2015

Last week Michael Paulsen and Ed Whelan criticized the idea of judicial supremacy. Here I will say some words in its defense.

To begin, let’s clarify what we are not talking about. I don’t think anyone (even including the Supreme Court) doubts that the Supreme Court makes mistakes in interpreting the Constitution – that is, that there is sometimes a difference between what the Court says the Constitution means and what it ought to say the Constitution means. (This is especially true for originalists with a nonorginalist Court). Further, I think everyone agrees (a) that it’s appropriate to criticize the Court for its mistakes – even for the President, other federal officials and state officials to do so; (b) it’s appropriate for them to call for erroneous decisions to be overturned, either by constitutional amendment or re-argument to the Court; and (c) it’s appropriate for state and federal officials to refuse to extend what they perceive to be erroneous Court decisions to somewhat analogous but arguably distinguishable circumstances (even where it’s fairly obvious that the Court would make the extension if it had the opportunity).

In addition, I think it's clear that substantial and important constitutional decisionmaking goes on in the executive branch and in Congress, and in the states, in areas where the Court has not spoken directly. Finally (although some might dispute it), I think a President or Congress may refuse to take an action, or may block an action, on constitutional grounds even if the Court has said the action is perfectly constitutional. (The classic example is Andrew Jackson’s veto of the Bank of the United States on constitutional grounds after the Court said the Bank was constitutional).

In my view the debate over judicial supremacy is mostly about two issues. First, must the President (or other governmental actor) obey a court ruling requiring or prohibiting a particular action? This is the In re Merryman situation, in which President Lincoln refused to obey a court order to release Merryman, whom the court found to be unconstitutionally detained. (The order was from a lower court but that seems immaterial). An equivalent modern situation would be if President Obama declined to halt the DAPA immigration enforcement program despite the court order to halt it.

Second, if there is a court decision finding a particular type of action unconstitutional, must the President or other governmental actor apply it to identically situated people who are not parties to the case? This is the Cooper v. Aaron situation, in which Arkansas officials claimed not to be bound to desegregate Arkansas schools although the Court had – in Brown, involving Kansas schools – said that segregation was unconstitutional. An equivalent modern situation would be if the Court found states constitutionally obligated to recognize same-sex marriage, and state officials refused to recognize the marriages of any same-sex couples other than those who were actually parties to the Supreme Court case.

I take it that the anti-supremacy argument is principally that government officials (especially the President) are bound by what the Constitution actually means, not by what the Supreme Court says it means. As a result, if the Court gets the meaning wrong (in the President’s view, let’s say), the President’s duty is to the actual Constitution. Or put another way, the Court can decide for its purposes what the Constitution means but the President can decide for his purposes what the Constitution means.

But I see several originalist problems with this position. First, that is not how the relationship between the monarch and judges was understood in eighteenth-century England. The king was not entitled to pursue his own view of the law despite the judges’ view of it. To take the Merryman situation, if an English judge ordered a person released on a writ of habeas corpus, the king would not be entitled to refuse because (in the king’s view) the judge got the law wrong. The whole point of habeas corpus in English law was to check executive power, and that check could only be effective if it was understood that the judge’s view of the law prevailed over the executive’s view. If we understand “the judicial Power” granted in Article III to encompass the judicial power as it had operated in English law, a similar supremacy should exist in American judges. At minimum, one would need to explain why the framers thought the President would have more power than the king in this regard.

Second, at least some framers expressed views that indicated a privileged role for judges in interpreting the law. Hamilton in Federalist 22 wrote:

Laws are a dead letter without courts to expound and define their true meaning and operation. … To produce uniformity in these determinations, they ought to be submitted, in the last resort, to one SUPREME TRIBUNAL. … If there is in each State a court of final jurisdiction, there may be as many different final determinations on the same point as there are courts. There are endless diversities in the opinions of men. We often see not only different courts but the judges of the same court differing from each other. To avoid the confusion which would unavoidably result from the contradictory decisions of a number of independent judicatories, all nations have found it necessary to establish one court paramount to the rest, possessing a general superintendence, and authorized to settle and declare in the last resort a uniform rule of civil justice.

The idea that courts are to “expound and define [laws’] true meaning and operation” necessarily encompasses a view of judicial supremacy. Hamilton does not appear to be talking about courts merely establishing a rule for themselves. Rather he sees court decisions as establishing a “uniform rule” for society as a whole – something that could not happen unless court decisions (especially decisions of the “one supreme tribunal”) were not regarded as authoritative statements of the law by other governmental actors.

Further, John Marshall seems to echo these views in Marbury. Though I agree that technically Marbury need not be read to declare judicial supremacy, I think Marshall’s view of the courts was similar to Hamilton’s. The famous statement that “[i]t is emphatically the province and duty of the judicial department to say what the law is” fits with Hamilton’s idea that courts would expound laws’ “true” meaning – that is, the meaning for everyone.

Third, I’m doubtful that anyone in the founding era reliably expressed the opposing view. (Jefferson did as President, but he had obvious institutional reasons for doing so). Professor Paulsen relies heavily on Lincoln, but Lincoln wasn't a framer and only some of Lincoln’s statements and actions truly challenge judicial supremacy as I would defined it (Lincoln said Dred Scott was wrongly decided and vowed to overturn it, but saying so is not inconsistent with judicial supremacy: a reasonable version of judicial supremacy does not require that we always think the Court is correct). In addition, Lincoln faced a unique crisis situation; it’s doubtful that actions in a crisis situation should be persuasive authority for how one should see the Constitution in ordinary times. And at least, I think we can say without apology that Lincoln erred as a constitutional matter in Merryman; otherwise, there is simply no legal check on executive power.

In any event, I’m not persuaded that originalism doesn’t include a form of judicial supremacy. The alternative is every branch a law unto itself, which seems inconsistent with the framers' idea of a written Constitution to check the branches' tendency to wrongfully augment their power and of an independent judiciary to keep the political branches within their constitutional boundaries. To be sure, a privileged position for the judiciary binds the political branches to erroneous judicial interpretations at the expense of the true meaning of the Constitution, but it also allows courts to block erroneous political branch interpretations that undermine the true meaning of the Constitution. It's not clear that the framers would have sacrificed the latter to avoid the former.

First,United States v. al-Maliki(no, not that al-Maliki) is a prosecution of a U.S. citizen for committing child abuse in Syria in 2010 (where he was visiting his ex-wife and children). On appeal, al-Maliki argued for the first time that the federal statute under which he was convicted is unconstitutional as beyond Congress' enumerated powers (the government argued that because he traveled in interstate/foreign commerce to reach Syria, everything he did there is within Congress' power).

The Sixth Circuit rejected al-Maliki's argument in a decision announced Wednesday, but mainly because it was not raised below. Judge David McKeague, writing for himself and Judge Jeffrey Sutton, observed:

Under the original meaning of the Constitution, the Foreign Commerce Clause did not give Congress the power to punish the conduct at issue here. “Commerce” originally meant trade or “[i]ntercour[s]e,” 1 S. Johnson, A Dictionary of the English Language 361 (4th ed. 1773)—i.e., “selling, buying, and bartering, [and] transporting for these purposes.” United States v. Lopez, 514 U.S. 549, 585–86 (1995) (Thomas, J., dissenting); see Randy Barnett, The Original Meaning of the Commerce Clause, 68 U. Chi. L. Rev. 101, 112–125 (2001). So the Foreign Commerce Clause as originally understood gave Congress the power to regulate trade or intercourse with foreign countries. Simple enough. And it simply does not include the power to criminalize a citizen’s noncommercial activity in a foreign country, for that is not “Commerce” as originally understood. Nor, for that matter, is it commerce “with” a foreign Nation, which is also required by the textualist reading.

But, alas in the interstate context, we have long since moved away from the original meaning of “regulate Commerce,” so we turn to the case law’s modern definition of the term. ...

I like the "alas".

After extensive analysis of modern cases, especially United States v. Lopez, the opinion continues:

Congress, it therefore appears, lacked the power under the Foreign Commerce Clause to pass [the applicable statute] as applied to noncommercial conduct. It makes sense, then, that the government conceded at oral argument that it couldn’t criminalize the same conduct occurring wholly intrastate. There isn’t—and can’t be—a generalized federal crime for traveling in interstate commerce with no illicit purpose and then, after a few months, committing illicit sexual conduct with a minor. It likewise makes sense that the government couldn’t articulate a limiting principle to prevent Congress from criminalizing jaywalking by a United States tourist in Canada. These are crimes in the States, e.g., Ohio Rev. Code Ann. § 2907.04 (illicit sexual conduct with a minor in Ohio), or crimes in foreign countries, e.g., Highway Traffic Act, R.S.O. 1990, c. H.8, § 144(22) (Can.) (jaywalking in Ontario), because those governments have a general police power. But the federal government does not. Morrison, 529 U.S. at 618–19.

So the government argues, as it must, that Congress has greater commerce power over conduct occurring in foreign countries than conduct occurring in the States. ...

We are skeptical. One reason offered for this broader interpretation is the lack of federalism concerns when Congress regulates activities occurring in foreign countries rather than in the States. Appellee Br. 23. But an unbounded reading of the Foreign Commerce Clause allows the federal government to intrude on the sovereignty of other nations—just as a broad reading of the Interstate Commerce Clause allows it to intrude on the sovereignty of the States. More importantly, an overbroad interpretation of the Foreign Commerce Clause allows the government to intrude on the liberty of individual citizens. And that seems as least as wrong as a reading of the Commerce Clause that allows the government to intrude on the States. See U.S. Const. amend. X (reserving power to the States “or to the people.”).

In any event, Congress’s power over regulating foreign commerce is “exclusive,” yes, but only when Congress acts “within its compass.” Henderson v. Mayor of City of New York, 92 U.S. 259, 272–73 (1875). That means the States can’t regulate foreign commerce in place of the federal government. See id. at 274. But Congress must still regulate commerce, and it does not have exclusive or plenary power unless it does so. The power to regulate commerce with foreign countries may be exclusive, which is all Japan Line establishes. But that says nothing about what commerce means. Giving the word “the same meaning throughout” the Clause so it “remain[s] a unit,” Gibbons v. Ogden, 22 U.S. 1, 194 (1824); see Saikrishna Prakash, Our Three Commerce Clauses and the Presumption of Intrasentence Uniformity, 55 Ark. L. Rev. 1149, 1173 (2003), we doubt that Congress has regulated commerce here, much less commerce with a foreign country.

But we need not finally decide today. As explained in more detail below, because we conclude only that the statute is not obviously unconstitutional, al-Maliki’s challenge flunks plain-error review.

Meanwhile, Josh Blackman reports on briefing in the Utah prairie dog case, People for the Ethical Treatment of Property Owners v. U.S. Fish & Wildlife Services. As he describes it,

At issue in this case is [the application of the Endangered Species Act to] the Utah prairie dog, which has absolutely no economic value, and has never dug any holes across state lines. Even under Lopez, Morrison, and Raich, this rodent cannot be considered interstate commerce, and the necessary and proper power cannot reach this far.

05/28/2015

I have been exploring the original meaning of the Seventh Amendment right to a civil jury trial. Here, I want to step back from that discussion and instead address the desirability of the Seventh Amendment.

In my view, it is not clear that a strong civil jury trial right is desirable. My reasons are similar to those that have been voiced by critics over the years. The civil jury is expensive in terms of the time taken from jurors and to the litigating parties. The civil jury is often not sufficiently expert to adjudicate complicated facts. And the civil jury often does not apply the actual law but instead their own views of justice. While the civil jury is a check on judges, I am not sure it is worth it.

If one believes the civil jury is a problem, then how should one deal with the Seventh Amendment and its original meaning? The short answer is that the Amendment should have been amended. If the judges had not relaxed the Amendment over time, then its problematic features would have become apparent, a consensus of some kind regarding its problems would have emerged, and an amendment that cut back on the right could have been enacted. Originalism would then have created the conditions for the amendment of the original meaning.

Instead, judges relaxed the meaning of the Amendment because they did not agree with the original meaning. Over time, these changes in the meaning of the Amendment reduced the undesirability of the Amendment and therefore made it much less likely that a consensus would emerge to amend the Amendment. But these improvements are still inferior to what the amendment process would have produced. These improvements reflect the preferences of judges rather than the public and are limited by what judges believed they could get away with in terms of interpretation. Ultimately, then, judicial revision or updating of the Constitution displaced the amendment process but employed an inferior process for changing the Constitution.

The Constitution and the Seventh Amendment would have been both better and more legitimate if the amendment process had been employed instead of judicial updating through interpretation.

The government has not made [Pear's] "drafting error" argument in either its brief or oral argument; instead the defendants argue that "exchange established by the state" is a term of art that includes exchanges not established by the state. There's good reason for this. The "drafting error" argument requires admitting that at some point "established by the state" was deliberately written into law to mean, well, exchanges established by individual states, something that the government has no interest in saying, because contrary to apparently popular belief, "drafting error" is not a magic word that forces the Supreme Court to give you a mulligan. As [Jonathan] Adler points out, Elena Kagan recently wrote in another case that, "This Court has no roving license, in even ordinary cases of statutory interpretation, to disregard clear language simply on the view that (in [the IRS’s] words) Congress 'must have intended' something broader."

Agreed. The remedy for a drafting error is for Congress to fix it, not for the Court to fix it. (The so-called absurdity rule, allowing courts to fix, in effect, typos, is entirely different: giving the language its natural meaning here may be bad policy but it isn't absurd in the sense of being incoherent or nonsensical). The problem is that once courts start "fixing" things, they inevitably begin considering what they think it the right policy answer -- something courts aren't well suited to assess and in any event aren't empowered to decide.

She continues:

However ... even if the court were inclined to broadly rewrite statutes to what the legislators wanted them to be, none of Pear's interviews would carry any weight toward that end. The Supreme Court isn't much interested in post-hoc statements of legislative intent. As Justice Antonin Scalia wrote in Pittston Coal Group v. Sebben: "Since such statements cannot possibly have informed the vote of the legislators who earlier enacted the law, there is no more basis for considering them than there is to conduct post-enactment polls of the original legislators."

This strikes a lot of people as crazy, including, obviously, many reporters. I mean, you have the legislators and staffers right there! Why not just ask them what they meant, rather than trying to puzzle it out from the statutory language?

Actually, this is not crazy, but very wise. Memory is incredibly fallible, especially about stuff you're highly motivated to believe.

Also agreed. You don't have to think people are lying to think they are unreliable. For this reason also we should be somewhat skeptical about post-ratification statements by the Constitution's framers as evidence of the Constitution's meaning, especially when made in the midst of a political debate.

05/27/2015

I have been blogging about the original meaning of the Seventh Amendment. Here I want to discuss another issue concerning its meaning: how much the Amendment allows the legislature to change the rules governing jury trials?

One concern about the Seventh Amendment is that it might be thought to freeze in place the precise common law at the time. If the legal system changes in other ways, then those frozen rules might not have a coherent relation with the rest of the system.

I am not sure that I find this complaint that serious. Assuming that the common law rules were frozen in place, if the courts enforced those rules, the legal system would have to grow around those rules, rather than growing in a way that renders those rules obsolete. Moreover, other constitutional clauses also freeze certain rules in place and we normally assume that it is a good thing.

But let’s put the policy issue aside and explore the original meaning. I don’t think the Seventh Amendment “right of trial by jury” necessarily freezes all the details of the right. The most likely way that the right to trial by jury would not freeze all the details is if the Amendment protected the right against infringement, but allowed reasonable regulation of the right that did not undermine its fundamental features. Under this principle, the legislature could make certain changes to the details of the right, but could not deprive individuals of the core of the right. Obviously, drawing the distinction in particular cases might sometimes be difficult.

One would, of course, need evidence to draw this inference. One bit of evidence is that this distinction between infringing a right and reasonably regulating a right was often draw in the early years of the republic and it may therefore have been a background principle underlying some or all of the constitutional clauses. One does want to be careful about this. Some clauses used the term “abridge” and the abridge/regulate distinction work better there than in the absence of this language.

A more difficult issue involves the second of the clauses in the Seventh Amendment: “and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.” This does not speak of a right, but to the rules of the common law. It is possible that the background rule might still kick in, but I think this is less likely, not only because it does not use the language of right, but also because this provision appears to be added in for extra emphasis (after all, it might be thought otherwise redundant of the right to a jury trial).

The main purpose of this Article is to begin to recover and elucidate the core textual basis of a progressive approach to constitutional law, which appears to have been embraced in essential respects by many influential figures, including James Wilson, Alexander Hamilton, John Marshall, Theodore Roosevelt, and Franklin Delano Roosevelt, and which rests on an implied power to promote the general welfare. To pursue this objective, the Article relies on two strange bedfellows: the law of corporations and the philosopher Paul Grice. An ordinary language philosopher like Grice, who writes about truth-functional connectives, bald French kings, and the like, might seem like unlikely ally to enlist in this endeavor. As this Article seeks to demonstrate, however, underestimating the significance of Grice’s ideas for constitutional law would be a mistake. Plausibly interpreted, the Constitution vests an implied power in the Government of the United States to promote the general welfare, and Grice’s distinction between semantic and pragmatic implication is a helpful means of understanding why. After a general introduction, the Article first summarizes some key aspects of Grice’s philosophy of language and then briefly illustrates their relevance for constitutional law. The remainder of the Article is then devoted to explaining how, along with a relatively simple principle in the law of corporations, according to which a legal corporation is implicitly vested with the power to fulfill its purposes, Grice’s distinction between semantic and pragmatic implication helps to illuminate a thorny problem of enduring interest: What powers does the Constitution vest in the Government of the United States?

Some features of DAPA are similar to prosecutorial discretion: DAPA amounts to the Secretary’s decision—at least temporarily—not to enforce the immigration laws as to a class of what he deems to be low-priority aliens.

If that were all DAPA involved, we would have a different case. DAPA’s version of deferred action, however, is more than nonenforcement: It is the affirmative act of conferring “lawful presence” on a class of unlawfully present aliens. Though revocable, that new designation triggers eligibility for federal and state benefits that would not otherwise be available.

“[A]lthough prosecutorial discretion is broad, it is not ‘unfettered.’” Declining to prosecute does not convert an act deemed unlawful by Congress into a lawful one and confer eligibility for benefits based on that new classification. Regardless of whether the Secretary has the authority to offer those incentives for participation in DAPA, his doing so is not shielded from judicial review as an act of prosecutorial discretion.

That's consistent with my view of the case, which is basically that the President can decline to prosecute (or, in the immigration context, decline to remove) but as a constitutional matter that's simply a non-action that does not change anyone's status or rights.

In my last post, I cited to Renee Lettow Lerner’s paper describing how the Seventh Amendment Jury Trial Right had been given a narrow meaning. Here I want to address one of the issues concerning the original meaning of the Seventh Amendment. The Amendment provides: “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”

One of the most important Seventh Amendment issues is the meaning of “common law.” When the Seventh Amendment was being debated, some people opposed it on the ground that the common law right to a jury trial differed in the states and therefore it was not clear which version of the right should be protected and which version would be protected by the Seventh Amendment.

Lerner points out that Justice Story held that “the common law” meant the common law of England based in part on the argument that the term was in the singular and that English common law was the source of all American common law. This is a plausible argument, but was certainly not the only possibility.

A second possibility is that the common law should have been understood as the general law. The general law was a conception of the common law that looked to the decisions of the various common law jurisdictions. If there was disagreement between the jurisdictions, the court would have to decide which was the better view, considering the prevalence of the view as well as whether it was desirable. This gave the court discretion to decide on the meaning of the common law, but if that is how the common law functioned, it is not for us to reject it for that reason. Under this view, then, the court would decide which view of the common law was the correct one and that view would be constitutionally protected.

A third possibility is that the common law referred to the core of the decisions of the various states. A judge would look to whether a right was protected in all of the states (or at least in a predominant number of them). The common law would be understood as a reference to the core of the right protected in different jurisdictions.

Determining which of these possible interpretations is the strongest would require additional work. But we should not automatically assume that the first possibility – the English common law – was the correct one.